262 POLITICAL SCIENCE.
chiefly particular, retrospective, and explanatory ; that of the
executive, particular and obedient to law and constitution.
Yet nice lines cannot be drawn between the three ; thus, legis-
lative acts may apply to a particular case only, and judicial
decisions may set a precedent for the future which practically
will have the force of law, if- not reversed. Again, the con-
fusion between departments that is seen in small and early
societies would imply intolerable despotism in larger ones at
a later period, but the evil was small when in theory it ap-
pears the greatest. If a city-king was judge in chief, priest
and military commander, and at the same time positive en-
actments were seldom made, our whole theory of division of
powers was violated, yet as he had no soldiers but the citi-
zens, as every decision could be reviewed by the entire com-
munity, he had powerful checks upon him in the absence of
all political checks. In a more advanced society, when
practically the Athenian people were judges as well as an
ecclesia, and judges with a certain control over the amount
of the damages and penalty in many cases, it seems as if the
culmination of demagogy were reached ; yet the political
crimes of the Athenian people were less than those of many
states with better constitutions.
The three powers are not only distinct, but in representative,
Departments inde- constitutional governments they are independent,
pendent ^ey are all emanations from the ground-law;
and two of them, the executive and judiciary, have no, or at
least slight, control over the other or over one another, while
they are engaged-in their legitimate duties. Aristotle (vi. or
iv., n, § 2) assigns to the ecclesia the decision concerning
peace and war, making and breaking of treaties, making the
laws, pronouncing the penalty of death, exile, and confisca-
tion, and receiving the accounts of magistrates. We see
from this passage what is plain of itself, that as soon as a rep-
resentative legislature takes the place of the people or politi-
cal body, its action will, of course, be abridged. In Aristotle's
Jist of attributes part of them would fall, from sheer inability
to discharge them, out of the hands of the law-making into the